Citation Nr: 0946144
Decision Date: 12/04/09 Archive Date: 12/18/09
DOCKET NO. 07-13 470A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas
THE ISSUES
1. Entitlement to an increased initial compensable rating
for residuals of a right foot fracture.
2. Entitlement to service connection for residuals of a left
foot fracture.
3. Entitlement to service connection for bilateral pes
planus.
4. Entitlement to service connection for a lumbosacral
strain secondary to bilateral foot fractures and or bilateral
flat feet.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
S. Grabia, Counsel
INTRODUCTION
The Veteran served on active duty from May 1970 to September
1971.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from rating decisions by the Department of
Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.
By rating action in December 2005 entitlement to service
connection for residuals of right and left foot fractures,
bilateral pes planus, and a lumbosacral strain were denied.
The Veteran disagreed with these decisions.
Subsequently by rating action in April 2007 entitlement to
service connection for residuals of a right foot fracture was
granted and a noncompensable rating was assigned effective
January 28, 2005. The Veteran disagreed with this decision.
Under Fenderson v. West, 12 Vet. App. 119, 125-26 (1999),
when a Veteran appeals the initial rating for a disability,
VA must consider the propriety of a "staged" rating based on
changes in the degree of severity of the disorder since the
effective date of service connection.
In November 2009, the Board received the Veteran's
appointment of Disabled American Veterans as his
representative and a statement of Accredited Representative
in Appealed Case (in lieu of VA Form 646). As the arguments
advanced by the Veteran's new representative are cumulative
of arguments previously of record, a remand for RO review
under 38 C.F.R. § 20.1304(c) is not warranted.
FINDINGS OF FACT
1. From January 28, 2005, residuals of a right foot fracture
were no more than mild or slightly symptomatic.
2. A left foot fracture was not shown in service or for
years thereafter, and any currently diagnosed left foot
fracture has not been shown to be related by competent
evidence to service; and is not proximately due to or
aggravated by a disability for which service connection has
already been established.
3. Bilateral pes planus was not shown in service or for
years thereafter, and any currently diagnosed bilateral pes
planus has not been shown to be related by competent evidence
to service; and is not proximately due to or aggravated by a
disability for which service connection has already been
established.
4. A low back disability, diagnosed as lumbar strain, was
not shown in service or for years thereafter, and any
currently diagnosed low back disability has not been shown to
be related by competent evidence to service; and is not
proximately due to or aggravated by a disability for which
service connection has already been established.
CONCLUSIONS OF LAW
1. The criteria for an initial compensable rating for
residuals of a right foot fracture were not met. 38 U.S.C.A.
§§ 1155, 5103, 5103A, 5107 (West 2002 & Supp 2009); 38 C.F.R.
§§ 3.159, 3.321(b), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a,
Diagnostic Codes 5003, 5284 (2009).
2. A left foot fracture disability is not the result of
disease or injury incurred in or aggravated by service, it is
not caused or aggravated by a service connected disorder and
it may not be presumed to have been so incurred. 38 U.S.C.A.
§§ 1101, 1110, 1112, 1113, 5103, 5103A; 38 C.F.R. §§ 3.159,
3.303, 3.307, 3.309 (2009); 38 C.F.R. § 3.310 (effective
prior to October 10, 2006).
3. Bilateral pes planus is not the result of disease or
injury incurred in or aggravated by service, it is not caused
or aggravated by a service connected disorder and it may not
be presumed to have been so incurred. 38 U.S.C.A. §§ 1101,
1110, 1112, 1113, 5103, 5103A; 38 C.F.R. §§ 3.159, 3.303
(2009); 38 C.F.R. § 3.310 (effective prior to October 10,
2006).
4. A low back disability is not the result of disease or
injury incurred in or aggravated by service, it is not caused
or aggravated by a service connected disorder and it may not
be presumed to have been so incurred. 38 U.S.C.A. §§ 1101,
1112, 1113, 1131, 5103, 5103A; 38 C.F.R. §§ 3.159, 3.303,
3.307, 3.309 (2009); 38 C.F.R. § 3.310 (effective prior to
October 10, 2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The requirements of the Veterans Claims Assistance Act of
2000 (VCAA) have been met. There is no issue as to providing
an appropriate application form or completeness of the
application. VA notified the Veteran in February 2005, May
2005, March 2006, and October 2008 correspondence of the
information and evidence needed to substantiate and complete
a claim, to include notice of what part of that evidence is
to be provided by the claimant and notice of what part VA
will attempt to obtain. VA fulfilled its duty to assist the
claimant in obtaining identified and available evidence
needed to substantiate a claim, and as warranted by law,
affording VA examinations. The claims were readjudicated in
the July 2009 supplemental statement of the case.
The Board notes that as an initial rating and an effective
date have been assigned for the right foot fracture
disability; the notice requirements of 38 U.S.C.A. § 5103(a),
have been met for this issue. Hartman v. Nicholson, 483 F.3d
1311 (Fed. Cir. 2007).
The claimant was afforded a meaningful opportunity to
participate in the adjudication of the claims, and he was
provided actual notice of the rating criteria used to
evaluate the disorders at issue. The claimant was provided
the opportunity to present pertinent evidence in light of the
notice provided. Because the Veteran has actual notice of
the rating criteria, and because the claims have been
readjudicated no prejudice exists. There is no evidence of
any VA error in notifying or assisting the appellant that
reasonably affects the fairness of this adjudication. Indeed,
neither the appellant nor his representative has suggested
that such an error, prejudicial or otherwise, exists. Hence,
the case is ready for adjudication.
The Board has reviewed all the evidence in the Veteran's
claims files that includes his written contentions, service
treatment records, private and VA medical records and
examination reports. Although the Board has an obligation to
provide adequate reasons and bases supporting these
decisions, there is no requirement that the evidence
submitted by the Veteran or obtained on his behalf be
discussed in detail. Rather, the Board's analysis below will
focus specifically on what evidence is needed to substantiate
the claims and what the evidence in the claims files shows,
or fails to show, with respect to the claims. See Gonzales
v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).
Background
The Veteran alleges that his service connected residuals of a
right foot fracture warrants a compensable initial
evaluation. In addition he alleges that he has a left foot
fracture disorder, bilateral pes planus, and a lumbar back
disorder which was incurred in service or is secondary to his
right foot fracture. He specifically takes issue with
findings that he does not presently have a flatfoot condition
if it was shown that he had such a condition in service.
The service treatment records note that on pre-induction
examination, a right flat foot condition was noted but are
otherwise negative for any treatment for a foot condition or
back condition. At discharge from service in September 1971,
the Veteran complained that he had then or ever had foot
trouble. Clinical evaluation of the feet was normal.
After service, at a December 2006 VA examination, the Veteran
reported with a cane for relief of his right foot disorder.
He reported stress fracture phenomenon and metatarsal strain
of the right and left feet. He also complained of bilateral
plantar fascial pattern pain as well as pain in the course of
the right 3rd metatarsal for which he reported the occasional
use of a crutch. He took aspirin, Tylenol, and flexural for
back pain. He has not had corrective surgery or
hospitalization for his conditions.
A podiatry examination revealed no relevant pain, fatigue,
weakness, motion problems, edema, instability, or tenderness,
bilaterally. The Veteran exhibited normal longitudinal arch
architecture; and, symmetrical normal form and function of
the tibialis posterior and tendo Achilles, bilaterally. He
was tender to palpation bilaterally over the plantar fascia
in the soles of the feet, weightbearing condylar region of
the 3rd metatarsal head, and shaft of the right foot.
Otherwise there was no painful motion, edema, weakness,
instability, or tenderness to either foot. Range of motion
was unimpaired bilaterally. Gait and weightbearing were
normal with an absence of callosities. Walking, standing,
and distance tolerance were normal. The examiner summarized
noting there was no evidence of pes planus, bilaterally. The
appellant had bilateral plantar fasciitis which was not
causally related to his period of service.
Specifically regarding the right foot, the examiner opined
that the Veteran's residual soreness could be characterized
as a chronic fracture reparation process in and about the
right 3rd ray with tenderness to examination and a complaint
of soreness/pain aggravated by ambulation. In addition to
the weightbearing tenderness of the 3rd metatarsal region of
the right foot; it was, "at least as likely as not
correlating with the patient's original complaint and history
for that right foot." There was no comparable residual
problem noted with the left foot. The range of motion was
not additionally limited by pain, fatigue, weakness, or lack
of endurance following repetitive motions. Further, the
examiner opined that," The third ray stress reaction or
fracture reparative chronic process would provide minimal or
mild limitation for this patient's ambulatory capacity for
activities of daily living or potential employment."
An orthopedist noted that the pre-entrance examination in
January 1970 diagnosed the Veteran with flat right foot. The
Veteran alleged that the flat right foot was aggravated by a
stress fracture in service, and limping eventually caused
left foot and back pain. The only evidence was allegations
made by the Veteran.
X-rays of the lumbar spine revealed significant
hypherthrophic degenerative changes of the lower lumbar spine
especially L5-S1. There was also a suggestion of spina
bifida deformity of S1. X-rays of the right foot appeared
within normal limits. The bony structures, articular
surfaces, and soft tissues looked unremarkable. After a
thorough review of the claims file and an orthopedic
examination, the examiner summarized that; the Veteran did
not complain of, nor was he seen for back pain on active
duty. He checked no on his September 1971 separation
examination to "back trouble of any kind." There were no
radiology reports indicating that the Veteran had his back x-
rayed in service. The examiner further noted that there was
no medical notation in the service records that the Veteran
had fractured either foot.
Based on all of the facts and the lack of documentation in
the claims file and service medical records, the orthopedist
opined that the Veteran's low back condition was not caused
by or a result of his alleged injury/disabilities that he
alleges he incurred in basic training.
At a November 2007 VA podiatry examination, the examiner
noted that the Veteran reported complaints variously in and
about the region of the course of the plantar fascia,
tibialis posterior and tendon, and the forefoot region of the
right foot more substantially than the left foot. A review
of the service records did not reveal specific entries
regarding the patient's claimed injury/fracture. The
examiner noted progress notes in the claim's file from a VAMC
physician noting an assessment of Morton's neuroma, right
foot; plantar fibroma, right foot, and probable tendonitis,
right foot.
Examination revealed no relevant pain, fatigue, weakness,
motion problems, edema, instability, or tenderness. The
Veteran's gait was abnormal and antalgic throughout the right
lower extremity with stiffness demonstrated in the right knee
and circuminduction of the right lower extremity. The
standing examination was abnormal with the Veteran leaning to
his left presumably to offload the right lower extremity
wherein this position accentuated the pes planus and valgus
position of the right foot. The examination itself was non-
focal with tenderness bilaterally along all metatarsal shafts
in the course of the plantar fascia bilaterally and
essentially anywhere palpation was attempted. The examiner
noted that for the most part the Veteran's reaction was;
in my opinion and experience, out of
proportion to any objective findings.
Careful examination of the course of the
plantar fascia and the sole of the right
foot out-characterize this patient as
equivocal for having any focal induration
that might characterize "plantar
fibroma."
He further noted that he could not identify any localized
tenderness that he could correlate to "Morton's neuroma."
There was no swelling, deformity, or limitations with either
foot. Both feet exhibited normal longitudinal arch
architecture. The appearance of flat right foot in the
examiner's opinion was accentuated with the Veteran's posture
with the maneuver previously noted. The tibia posterior
tendon bilaterally did not demonstrate any focal tenderness
or limitation; there was normal form and function of the
tibialis posterior and tendo Achilles bilaterally. There was
no focal pain upon manipulation of either foot; and, tendo
Achilles alignment was normal. There was no edema, weakness,
or instability with either foot. Gait, weightbearing were
normal with an absence of callosities. Walking, standing,
and distance tolerance at the time of examination was mildly
to moderately limited. The examiner summarized noting that
the Veteran presented:
a clinical picture suspicious for
factitious complaint with what may be
factitious posture for examination and
accentuation of the right foot
undermining objective examination. The
service medical record itself has a
paucity of any clear reference to
specific injury and sequelae and does not
seem, from what I can discern, that any
injury occurred that ultimately limited
the patient's completion of
responsibilities during his brief
military service. I am not able to
identify any focal pathology, especially
with careful attention to the right foot,
that I would be able to correlate in any
way to injury sustained during military
service or accentuated by military
service in any way. Other than
identifying this patient as having
bilateral plantar fasciitis without
correlation to military service, I would
be reluctant to offer any further
specific diagnostic comments.
I did not find significant or specific
pathologies that would provide limitation
for this patient's employment potential
or even activities of daily living.
Ranges of motion are not additionally
limited by pain, fatigue, weakness, or
lack of endurance following repetitive
use.
The file contains VAMC medical records for treatment of
various physical conditions including the Veteran's right and
left feet, and his lumbar back. None of the evidence of
record reveals any evidence that the right foot disorder is
more severe than shown by examination. In addition there are
no nexus opinions regarding the left foot; bilateral pes
planus; or lumbar disorder to service or to the service
connected right foot fracture.
I. Increased rating- Right foot fracture
Disability ratings are determined by applying the criteria
set forth in the VA Schedule for Rating Disabilities (Rating
Schedule) and are intended to represent the average
impairment of earning capacity resulting from disability. 38
U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be
reviewed in relation to their history. 38 C.F.R. § 4.1.
Other applicable, general policy considerations are:
interpreting reports of examination in light of the whole
recorded history, reconciling the various reports into a
consistent picture so that the current rating may accurately
reflect the elements of disability, 38 C.F.R. § 4.2;
resolving any reasonable doubt regarding the degree of
disability in favor of the claimant, 38 C.F.R. § 4.3; where
there is a question as to which of two evaluations apply,
assigning a higher of the two where the disability picture
more nearly approximates the criteria for the next higher
rating, 38 C.F.R. § 4.7; and, evaluating functional
impairment on the basis of lack of usefulness, and the
effects of the disabilities upon the person's ordinary
activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1
Vet. App. 589 (1991).
In general, the degree of impairment resulting from a
disability is a factual determination and generally the
Board's primary focus in such cases is upon the current
severity of the disability. Francisco v. Brown, 7 Vet. App.
55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402
(1994). However, in Fenderson v. West, 12 Vet. App. 119
(1999), it was held that the rule in Francisco does not apply
where the appellant has expressed dissatisfaction with the
assignment of an initial rating following an initial award of
service connection for that disability, as is the case here.
Rather, at the time of an initial rating, separate ratings
can be assigned for separate periods of time based on the
facts found - a practice known as 'staged' ratings.
Fenderson, 12 Vet. App. At 126.
When evaluating a loss of motion, consideration is given to
the degree of functional loss caused by pain. DeLuca v.
Brown, 8 Vet. App. 202 (1995) (evaluation of musculoskeletal
disorders rated on the basis of limitation of motion requires
consideration of functional losses due to pain). In DeLuca,
the Court explained that, when the pertinent diagnostic
criteria provide for a rating on the basis of loss of range
of motion, determinations regarding functional losses are to
be "'portray[ed]' (38 C.F.R. § 4.40) in terms of the degree
of additional range-of-motion loss due to pain on use or
during flare-ups." Id. at 206.
Ratings shall be based as far as practicable, upon the
average impairments of earning capacity with the additional
proviso that the Secretary shall from time to time readjust
this schedule of ratings in accordance with experience. To
accord justice, therefore, to the exceptional case where the
schedular evaluations are found to be inadequate, the Under
Secretary for Benefits or the Director, Compensation and
Pension Service, upon field station submission, is authorized
to approve on the basis of the criteria set forth in 38
C.F.R. § 3.321 (2008) an extra-schedular evaluation
commensurate with the average earning capacity impairment due
exclusively to the service-connected disability or
disabilities. The governing norm in these exceptional cases
is a finding that the case presents such an exceptional or
unusual disability picture with such related factors as
marked interference with employment or frequent periods of
hospitalization as to render impractical the application of
the regular schedular standards. 38 C.F.R. § 3.321(b)(1).
Under 38 C.F.R. § 4.71a, Diagnostic Code 5010, arthritis, due
to trauma, substantiated by X-ray findings, will be rated as
degenerative arthritis. Under 38 C.F.R. § 4.71a, Diagnostic
Code 5003, degenerative arthritis established by X-ray
findings will be rated on the basis of limitation of motion
under the appropriate Diagnostic Codes for the specific joint
or joints involved. Limitation of motion must be objectively
confirmed by findings such as swelling, muscle spasm, or
satisfactory evidence of painful motion.
Under 38 C.F.R. § 4.40, disability of the musculoskeletal
system is primarily the inability, due to damage or infection
in parts of the system, to perform the normal working
movements of the body with normal excursion, strength, speed,
coordination and endurance. It is essential that the
examination on which ratings are based adequately portray the
anatomical damage, and the functional loss, with respect to
all these elements. The functional loss may be due to
absence of part, or all, of the necessary bones, joints and
muscles, or associated structures, or to deformity,
adhesions, defective innervation, or other pathology, or it
may be due to pain, supported by adequate pathology and
evidenced by the visible behavior of the claimant undertaking
the motion. Weakness is as important as limitation of
motion and a part which becomes painful on use must be
regarded as seriously disabled. A little used part of the
musculoskeletal system may be expected to show evidence of
disuse, either through atrophy, the condition of the skin,
absence of normal callosity, or the like.
Additionally, 38 C.F.R. § 4.45 provides as regards to the
joints that the factors of disability reside in reductions of
their normal excursion of movements in different planes.
Inquiry will be directed to these considerations: (a) Less
movement than normal (due to ankylosis, limitation or
blocking, adhesions, tendon-tie-up, contracted scars, etc.).
(b) More movement than normal (range of motion flail joint,
resections, nonunion of fracture, relaxation of ligaments,
etc.). (c) Weakened movement (due to muscle injury, disease
or injury of peripheral nerves, divided or lengthened
tendons, etc.). (d) Excess fatigability. (e)
Incoordination, impaired ability to execute skilled movements
smoothly. (f) Pain on movement, swelling, deformity or
atrophy of disuse. Instability of station, disturbance of
locomotion, interference with sitting, standing and weight-
bearing are related considerations.
The Veteran's service-connected right foot fracture is
currently evaluated as noncompensable under Diagnostic Code
5284. In order for a higher evaluation to be assigned, there
must be evidence of moderate foot injury.
Under 38 C.F.R. § 4.71a, Diagnostic Code 5284, a moderately
severe foot injury warrants a 20 percent evaluation; a
moderate foot injury warrants a 10 percent evaluation. Id.
The Note to this Code indicates that a maximum 40-percent
rating will be assigned for actual loss of use of the foot.
Where the schedule does not provide a zero percent evaluation
for a diagnostic code, a zero percent evaluation shall be
assigned when the requirements for a compensable evaluation
are not met. 38 C.F.R. § 4.31.
In VAOGCPREC 9-98; 63 Fed.Reg. 56704 (1998), VA's General
Counsel held that Diagnostic Code 5284 was potentially based
on loss of range of motion. Depending on the nature of the
foot injury, therefore, Diagnostic Code 5284 may require
consideration under 38 C.F.R. §§ 4.40 and 4.45.
Normal range of ankle motion is dorsiflexion to 20 degrees
and plantar flexion to 45 degrees. 38 C.F.R. § 4.71, Plate
II (2008).
The words "slight", "moderate" and "severe" are not defined
in the Rating Schedule. Rather than applying a mechanical
formula, the Board must evaluate all of the evidence to the
end that its decisions are "equitable and just." 38 C.F.R. §
4.6 (2008).
After a careful review of the entire record, the Board has
concluded that the service-connected right foot fracture
would not warrant a compensable evaluation. Two
comprehensive VA examinations found no objective residuals of
the right foot fracture. In fact while the podiatrist in the
December 2006 examination determined that the Veteran's
complaints correlated with his history of an in service
stress fracture, he found the Veteran to be unimpaired by the
residuals of the stress fracture. Range of motion of the
right foot was unimpaired and the activities of daily living
and employment were minimally to no more than mildly
impaired. An orthopedist noted no evidence of any foot
fracture or complaints during service, and in fact current x-
rays of the right foot were normal.
Likewise in the November 2007 VA examination the podiatrist
noted a clinical picture suspicious for factitious complaint
and posturing for examination undermining objective
examination. He again noted the lack of any clear reference
to specific injury in service and noted that he was unable to
identify any focal pathology, especially with careful
attention to the right foot, and was unable to correlate in
any way to an injury sustained during military service or
accentuated by military service in any way. Finally he noted
that range of motion was not additionally limited by pain,
fatigue, weakness, or lack of endurance following repetitive
use; and, no significant or specific pathologies that would
provide limitation for the Veteran's employment or activities
of daily living were identified.
Such evidence warrants against a finding that the Veteran's
right foot fracture is more than slightly or minimally
disabling and does not warrant an increased compensable
rating under 38 C.F.R. § 4.71a, Diagnostic Code 5284.
While the Board does not doubt the severity of the Veteran's
right foot problems, the objective medical evidence does not
demonstrate that his service connected right foot pathology
equates to a moderate foot disability. As such, and even
with consideration of DeLuca, the objective evidence of
record reflects the Veteran's complaints of pain and
tenderness but is not reflective of deficits so as to warrant
an increased evaluation.
The level of impairment associated with the service-connected
right foot problem has been relatively stable throughout the
appeals period, or at least has never been worse than what is
warranted for a 0 percent rating. Therefore, the application
of staged ratings (i.e., different percentage ratings for
different periods of time) is inapplicable. See Hart v.
Mansfield, 21 Vet. App. 505 (2007).
The Board considered whether the case should be referred to
the Director of the VA Compensation and Pension Service for
extra-schedular consideration under 38 C.F.R. § 3.321(b)(1).
The medical evidence does not show more than mild residuals
of a right foot injury. The Veteran has not had to undergo
any post service surgery on his right foot since his
discharge from service in 1971. He has not indicated that
such disabilities have impacted his ability to work. In sum,
the Veteran's case is not exceptional and the diagnostic
criteria adequately address the level of impairment suffered
by the Veteran. See Thun v. Peake, 22 Vet. App. 111 (2008).
Therefore, referral of this case for extra- schedular
consideration is not in order. See Floyd v. Brown, 9 Vet.
App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996).
An inferred claim for a total disability based on individual
unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App.
447 also is not warranted. A December 2006 VA examination
report noted that the Veteran's service-connected right foot
disability provided minimal or mild limitation for the
Veteran's potential employment. A November 2007 VA examiner
also found that there were no significant or specific
pathologies that would provide limitation for the Veteran's
employment potential. There is no evidence of entitlement to
a TDIU.
In reaching this decision the Board considered the doctrine
of reasonable doubt, however, as the preponderance of the
evidence is against the appellant's claim for increase, the
doctrine is not for application. Gilbert v. Derwinski, 1 Vet.
App. 49 (1990).
II. Service connection
Service connection is warranted where the evidence of record
establishes that a particular injury or disease resulting in
disability was incurred in the line of duty in the active
military service or, if pre-existing such service, was
aggravated thereby. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.
In addition, service connection may also be warranted for any
disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d). Such
evidence must be medical unless it relates to a condition as
to which, under the Court case law, lay observation is
competent. Savage v. Gober, 10 Vet. App. 488, 498 (1997). In
addition, if a condition noted during service is not shown to
be chronic, then generally a showing of continuity of
symptomatology after service is required for service
connection. 38 C.F.R. § 3.303(b) (2009).
Certain chronic disabilities, such as arthritis (degenerative
joint disease) are presumed to have been incurred in service
if manifest to a compensable degree within one year of
discharge from active duty. 38 U.S.C.A. §§ 1101, 1112; 38
C.F.R. §§ 3.307, 3.309.
To establish service connection for a claimed disorder, there
must be (1) medical evidence of a current disability; (2)
medical, or in certain circumstances, lay evidence of the in-
service incurrence or aggravation of a disease or injury; and
(3) medical evidence of a nexus between the claimed in-
service disease or injury and the current disability.
Hickson v. West, 12 Vet. App. 247, 253 (1999). The absence
of any one element will result in the denial of service
connection. Coburn v. Nicholson, 19 Vet. App. 427 (2006).
In addition, service connection can be granted on a secondary
basis. Except as provided in 38 C.F.R. § 3.300(c),
disability which is proximately due to or the result of a
service-connected disease or injury shall be service
connected. When service connection is thus established for a
secondary condition, the secondary condition shall be
considered a part of the original condition. 38 C.F.R.
§ 3.310(a).
The Board observes that 38 C.F.R. § 3.310, the regulation
concerning secondary service connection, was amended
effective October 10, 2006. See 71 FR 52744-47, (Sept. 7,
2006). The intent was to conform the regulation to Allen v.
Brown, a U.S. Court of Appeals for Veterans Claims decision
that clarified the circumstances under which a Veteran may be
compensated for an increase in the severity of an otherwise
nonservice-connected condition caused by aggravation from a
service-connected condition. Any increase in severity of a
nonservice-connected disease or injury that is proximately
due to or the result of a service-connected disease or
injury, and not due to the natural progress of the
nonservice-connected disease, will be service connected.
However, VA will not concede that a nonservice-connected
disease or injury was aggravated by a service-connected
disease or injury unless the baseline level of severity of
the nonservice-connected disease or injury is established by
medical evidence created before the onset of aggravation or
by the earliest medical evidence created at any time between
the onset of aggravation and the receipt of medical evidence
establishing the current level of severity of the nonservice-
connected disease or injury. See 38 C.F.R. § 3.310 (2009).
The new regulation appears to place additional evidentiary
burdens on claimants seeking service connection based on
aggravation, specifically, in terms of establishing a
baseline level of disability for the non-service-connected
condition prior to the aggravation. Because the new law
appears more restrictive than the old, and because the
Veteran's appeal was already pending when the new provisions
were promulgated, the Board will consider this appeal under
the law in effect prior to October 10, 2006. See, e.g.,
Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (new
regulations cannot be applied to pending claims if they have
impermissibly retroactive effects).
It is the Board's fundamental responsibility to evaluate the
probative value of all medical and lay evidence. See Owens
v. Brown, 7 Vet. App. 429 (1995). Once the evidence is
assembled, the Board is responsible for determining whether
the preponderance of the evidence is against the claim. If
so, the claim is denied; if the evidence is in support of the
claim or is in equal balance, the claim is allowed. 38
U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55
(1990). It is the policy of VA to administer the law under a
broad interpretation, consistent with the facts in each case
with all reasonable doubt to be resolved in favor of the
claimant; however, the reasonable doubt rule is not a means
for reconciling actual conflict or a contradiction in the
evidence. 38 C.F.R. § 3.102.
The Veteran contends that he has a left foot fracture;
bilateral pes planus; and a chronic back disorder that is
directly or secondarily due to his service connected
residuals of a right foot fracture.
The service treatment records indicate he was never treated
for or diagnosed with a left foot fracture; bilateral pes
planus; or a chronic back disorder in service. At his pre-
induction examination a right flat foot condition was noted.
It was not however treated or diagnosed in service, and it
was not noted on his separation examination. Notably, no
left foot stress fracture, or bilateral pes planus was noted
on VA podiatry examinations in December 2006 and November
2007.
The Veteran does not, primarily, allege seeking treatment for
a back injury in service. Rather, he alleges that the back
disorder is secondary to his right foot fracture. An
orthopedist at the December 2006 VA examination noted that
while current x-rays of the lumbar spine revealed significant
hypherthrophic degenerative changes of the lower lumbar
spine, and a suggestion of spina bifida deformity of S1; the
examiner opined that based on all of the facts and the lack
of documentation in the claims file and service medical
records, the Veteran's low back condition was not caused by
or a result of his alleged injury/disabilities that he
alleges he incurred in basic training.
As previously noted post service medical records include
private records, and VA treatment records to the present
time. Review of these records does not reveal a nexus
opinion relating the Veteran's left foot fracture, bilateral
pes planus, or any back disorder to service or to any service
connected condition.
Analysis
As the service treatment records note a right flat foot
condition during the pre-induction examination, the Veteran
is not considered sound at entry into service. A veteran
will be considered to have been in sound condition when
examined, accepted and enrolled for service, except as to
defects, infirmities, or disorders noted at entrance into
service, or where clear and unmistakable (obvious or
manifest) evidence demonstrates that an injury or disease
existed prior thereto. Only such conditions as are recorded
in examination reports are to be considered as noted. 38
U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). Effective May 4,
2005, VA amended its regulations at 38 C.F.R. § 3.304(b) to
reflect the change in the interpretation of the statute
governing the presumption of sound condition. The final rule
conforms to Federal Circuit precedent Wagner v. Principi, 370
F. 3d 1089, 1096 (Fed. Cir. 2004), and applies to claims,
which were pending on or filed after May 4, 2005. As the
veteran's case was pending as of that date, the amendment
applies.
If a preexisting disorder is noted upon entry into service,
the veteran cannot bring a claim for service connection for
that disorder, but the veteran may bring a claim for service-
connected aggravation of that disorder. In that case section
1153 applies and the burden falls on the veteran to establish
aggravation. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed.
Cir. 1994). If the presumption of aggravation under section
1153 arises, the burden shifts to the government to show a
lack of aggravation by establishing "that the increase in
disability is due to the natural progress of the disease."
38 U.S.C. § 1153; see also 38 C.F.R. § 3.306; Jensen, 19 F.3d
at 1417. Wagner, supra.
Clear and unmistakable evidence (obvious or manifest) is
required to rebut the presumption of aggravation where the
pre-service disability underwent an increase in severity
during service. This includes medical facts and principles
which may be considered to determine whether the increase is
due to the natural progress of the condition. Aggravation
may not be conceded where the disability underwent no
increase in severity during service on the basis of all the
evidence of record pertaining to the manifestations of the
disability prior to, during and subsequent to service.
38 C.F.R. § 3.306(b).
The Veteran has not met his burden of showing that his right
flat foot condition was aggravated in service. The service
treatment records do not show any evidence of aggravation of
the right flat foot, as there is no indication of any
treatment or complaints. At discharge from service, although
the Veteran complained that he had then or ever had foot
trouble, clinical evaluation of the feet was normal. Thus,
the Veteran's service connection claim for right foot pes
planus fails.
Notwithstanding the Veteran's assertions that his left foot
fracture, bilateral pes planus, or back disorder is the
result of service or is secondary to his service connected
right foot disorder, the service treatment records are silent
for any medical evidence of any left foot fracture, bilateral
pes planus, or back disorder. In fact the medical records
reveal no evidence of any current residuals of a left foot
fracture or pes planus disorder. A back disorder is first
shown in a July 2004 lumbar spine x-ray, over 33 years after
the appellant's separation from active duty. At that time he
was diagnosed with hypertrophic degenerative changes of the
lower lumbar spine and a suggestion of spina bifida. Such a
lapse of time is a factor for consideration in deciding
service connection claims. See Maxson v. Gober, 230 F.3d
1330 (Fed. Cir. 2000). Moreover, there is no competent
medical evidence linking any left foot fracture, bilateral
pes planus, or low back disorder to either service or a
service incurred disorder.
The only evidence in support of the claims are the Veteran's
statements. However, as a layperson, he is not competent to
provide a probative opinion on a medical matter, such as the
etiology of the claimed disorders. See Bostain v. West, 11
Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2
Vet. App. 492 (1992); see also Routen v. Brown, 10 Vet. App.
183, 186 (1997) ("a layperson is generally not capable of
opining on matters requiring medical knowledge"). As a
result, his assertions linking his current left foot
fracture, bilateral pes planus, or low back disorder to
service are not competent medical evidence in support of his
claims.
In summary, right pes planus was not aggravated in service; a
left foot fracture, left pes planus, and a chronic back
disorder were not shown in service or until years thereafter;
arthritis was not manifested to a compensable degree within
one year of the Veteran's separation from active duty; and
the competent evidence of record indicates that a left foot
fracture, bilateral pes planus, and a lumbar disorder are not
causally related to either his active service or his service
connected right foot fracture. Hence, the preponderance of
the evidence is against the claims of entitlement to service
connection for a left foot fracture, bilateral pes planus,
and a chronic back disorder. As such, the claims must be
denied.
In light of the evidence preponderating against the claims,
the benefit of the doubt doctrine is not applicable and
service connection cannot be granted. 38 U.S.C.A. § 5107(b).
Accordingly, the claims are denied.
ORDER
An increased initial compensable rating for residuals of a
right foot fracture is denied.
Service connection for residuals of a left foot fracture is
denied.
Service connection for bilateral pes planus is denied.
Service connection for a lumbosacral strain secondary to a
bilateral foot fracture and or bilateral pes planus is
denied.
____________________________________________
SARAH B. RICHMOND
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs